Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

At my request, I was provided with an example of the First Label on the Product (in this case, a bottle of Malbec). I also requested examples of the Second Label and the Third Label attached to bottles. I was told by the Claimants’ counsel that these were not available. This was not helpful for the purposes of the passing off case. Whilst images can do some of the work, the curved nature of a bottle means that I was unable to experience the Second Label or Third Label as consumers would have experienced them. According to the correspondence, Ms Martin had instructed English solicitors specialising in intellectual property by 7 October 2020, when Products bearing the First Label were still on sale in the United Kingdom, and prior to the sale in the United Kingdom of Products bearing the Second Label or the Third Label. A “trap purchase” of the First Label Product was carried out by professional intellectual property investigators in September 2021. US lawyers had been instructed as early as 18 June 2020. It should therefore have been a priority to procure and retain examples of each label as attached to wine bottles. Whilst Ms Martin has changed English law firms more than once during these proceedings, that does not adequately explain the lack of evidence of what are said to be the infringing products in this case.